Hannah C. Dugan,
U.W. 1987, practices at the Legal Aid Society of Milwaukee Inc. She
served on the Wisconsin Ethics 2000 Committee.

Why is it necessary that Wisconsin have a stand-alone guardian ad
litem (GAL) rule? SCR 20:4.5 Guardians ad Litem is one of three
completely new rules that the Wisconsin Ethics 2000 Committee has
proposed be added to the Rules of Professional Conduct for Attorneys by
which lawyers currently practice.1 This
article briefly discusses the proposed GAL rule and the professional
responsibility gaps it is designed to bridge.

Proposed Rule 4.5 Guardians Ad Litem

Proposed rule 4.5 reads:

"A lawyer appointed to act as a guardian ad litem or as an attorney
for the best interests of an individual represents, and shall act in,
the individual's best interests, even if doing so is contrary to the
individual's wishes. A lawyer so appointed shall comply with the Rules
of Professional Conduct, except with respect to requirements concerning
client consent or direction."

Wisconsin Ethics 2000 Committee comment. "The [ABA]
Model Rules do not contain a counterpart provision. The role of
guardians ad litem is defined consistent with reported decisions.
See,e.g., Paige K.B. v. Molepske, 219 Wis.
2d 418, 580 N.W.2d 289 (1998); In re Steveon R.A., 196 Wis. 2d
171, 537 N.W.2d 142 (Ct. App. 1995). Eligibility for appointment as a
guardian ad litem is governed by Supreme Court Rules, Ch. 35-36. The
Rule expressly notes that a lawyer acting as guardian ad litem
represents the best interests of the child or ward for whom the lawyer
is appointed. Because the child or ward of a guardian ad litem is not a
client in the usual sense of that term, care should be used in applying
these Rules, particularly Rules 1.2 [scope of representation] and 1.6
[confidentiality of information]."

As noted in the committee comment, no counterpart rule exists in the
ABA Model Rules, on which the Wisconsin rules are based. Despite the
GAL's critical role in the court system - to serve in a special
court-appointed capacity as "the eyes and the ears" of the court - this
role is only mentioned in the most recent ABA Model Rules and,
therefore, now in some states' rules.2
Unlike attorneys acting in other roles, GALs do not represent actual
clients but rather carry out the concept of "representing the best
interests" of legally incompetent persons or other persons who need
their interests protected. The need for GAL appointment arises when the
individual is an interested person or party to an action but is not the
initiating, or in some instances the responding, litigant.3 A GAL does not represent the government or a
family member or even the legally or alleged incompetent person. Indeed,
because no client is represented, the committee intentionally placed
proposed rule 4.5 in subchapter IV of Chapter 20, entitled "Transactions
with Persons Other than Clients."

Case law, and statutory and inherent authority, exist regarding GALs
in matters involving family law, CHIPS, municipal prosecution, and
probate. Much of current GAL-related case law addresses whether the
attorney can act as a GAL altogether.4 Some
statutory authority directs some of the duties that GALs perform, for
example, Wis. Stat. chapters 48, 55, 767, and 880. But there is no
authority that indicates that GALs serve in an attorney-client
representative capacity. The committee notes that rules involving client
consent, the scope of representation, and allocation of authority
between lawyer and client cannot readily apply to an attorney acting as
a GAL, because the GAL 1) does not have a client and 2) serves in some
type of substitution capacity by order of the court.

So why is it necessary that Wisconsin have a stand-alone GAL
rule?

The Rule Clarifies GAL Responsibilities for the Public and for the
Court

In Wisconsin, unlike many other states, only licensed attorneys can
accept GAL appointments. During the last several years, the Wisconsin
Supreme Court has directed a good deal of administrative attention to
eligibility standards for GALs.5 This
heightened standardization of the GAL role should be recognized in the
rules to which the public and the profession turn for guidance regarding
attorney conduct.

The rules, which pertain largely to the client-attorney relationship,
do not explicitly or otherwise necessarily provide direction regarding
the appropriate and relevant conduct of GALs. The Office of Lawyer
Regulation (OLR) and the State Bar Professional Ethics Committee receive
numerous complaints and inquiries regarding GALs. Both of these
entities, after reviewing statutory authorities and case law standards
concerning GALs, can fashion responses to the inquiries. However,
sometimes of necessity, the responses can be tenuous, because no clearly
applicable rules are available for application.

Given that the rules serve both as accepted standards of conduct and
as bases for discipline, the rules currently do not fulfill these
functions adequately because they do not address the core issue: by what
authority are the public, the courts, lawyers, and the OLR supposed to
know that GALs have carried out the role they accepted? The proposed
rule sets out the basic standard against which both hypothetical and
actual fact situations can be measured: 1) the GAL is expected to
represent the individual's best interests; and 2) the GAL, in carrying
out this duty, is not expected nor obligated to necessarily follow an
individual's wishes.

The Rule Eliminates the Current GAL "Catch-22"

The holding in Paige K.B. v. Molepske created a bit of a
catch-22 in the area of attorney discipline, adding further impetus for
the Ethics 2000 Committee to recommend the GAL rule. In
Molepske, the plaintiff minors brought an action against the
defendant GAL, claiming that the GAL had negligently performed his
duties in their custody proceedings and that his negligence had caused
the wards to suffer substantial injury.

The court held that the attorney was entitled to absolute
quasi-judicial immunity for any negligent performance of his
duties.6 Part of the rationale stated by
both the Wisconsin Supreme Court and the Court of Appeals in arriving at
this decision was in essence that a litigant's remedy is to file a
complaint against the attorney with the OLR; redress is not available by
naming the GAL in a negligence action.7 With
this holding, the public is directed to the OLR as a place for recourse
for unacceptable professional activity by GALs. And therein lies the
catch-22. A person, who otherwise would be a tort litigant, is directed
to file an OLR complaint, but no professional conduct rule currently
exists to address the conduct of an attorney acting in the GAL role. As
a result, with very few exceptions, the public currently cannot seek
review of GAL professional conduct by either the courts or the
OLR.8

The proposed GAL rule helps to reconcile the Molepske
holding, which deprives a litigant of a remedy, with a process for
providing a complainant with redress. Attorneys who serve as GALs can
now be subject to discipline for violating the Rules of Professional
Conduct for Attorneys, because proposed rule 4.5 lays out the standard
that, as GALs, attorneys have a special role, and their actions shall be
in the individual's best interests, even if GAL recommendations are
contrary to the individual's wishes. Such a rule will 1) help guide
persons contemplating whether to file a complaint against an attorney,
and 2) serve as a guide to the OLR in deciding whether to investigate
and to prosecute a complaint against a GAL.

As is true of all complaints filed with the OLR, the rule will be
applied to individual facts of a case and will be considered along with
the guidance found in the Wisconsin commentary. It is hoped that rule
4.5 will be instructive to potential OLR complainants who are
dissatisfied with the GAL's recommendations rather than with the GAL who
made the recommendations. Further, the rule will serve as a means to
respond to legitimate complaints of abuse, misconduct, or
irresponsibility by GALs - such as those that were evident and discussed
in Molepske. By adopting the GAL rule, Wisconsin will lead the
nation in setting standards for attorneys in nonadvocate roles as well
as in protecting our most vulnerable residents from professional
misconduct.

Endnotes

1In the wake of the ABA Ethics 2000
Commission amendments to the ABA Model Rules of Professional
Responsibility, the Wisconsin Supreme Court appointed the Wisconsin
Ethics 2000 Committee in 2003 to review SCR chapter 20, Rules of
Professional Conduct for Attorneys.

2See changes to ABA Model Rule 1.14
(and Wisconsin SCR 20:1.14 as proposed) discussing clients with
diminished capacity. Previously, the rule provided for appointment of a
guardian, which is a substantially more involved and ethically
complicated process than is seeking the appointment of a GAL. With the
exception of Wyoming (where GALs are mentioned in the commentary to its
Rule 1.14(C)), none of the ABA's or other states' rules mention
GALs.

5The court adopted SCR 35.01
(effective July 1, 1999) requiring CLE credit requirements and training
for GALs for minors in matters under Wis. Stat. chapter 48 or 938 (and
effective July 1, 2003 for appointments in matters under Wis. Stat.
chapter 767); and adopted SCR 36.01 (effective July 1, 2004) requiring
the same for GALs for adults in actions or proceedings under Wis. Stat.
chapters 51, 55, and 880.

6The court held that 1)
quasi-judicial immunity extends to nonjudicial officers when they
perform acts intimately related to the judicial process; 2) a GAL acts
on behalf of the court by appointment; and 3) a GAL appointed by a
circuit court pursuant to Wis. Stat. section 767.045 to represent a
child's best interests in a custody proceeding performs functions
intimately related to the judicial process and, therefore, is entitled
to absolute quasi-judicial immunity.

7Indeed, the court identified in
Molepske that a GAL must be an attorney admitted to practice in
the state and, therefore, is bound by and subject to reprimand for
violating the rules of professional conduct. In the decision, the court
specifically noted violations of SCR 20:8.4 (misconduct) and 21.06
(types of discipline).

8Nothing exempts a GAL from the
supreme court rules. However, as written, they do not necessarily
provide clear direction or authority for the public to complain or the
regulatory authority to prosecute. Some rules can be looked to for
guidance, e.g., SCR 20:1.1 "provide competent representation to
a client;" SCR 20:1.7 "conflict of interest generally between lawyers
and clients and a lawyer's current clients or other clients;" SCR 20:1.9
"conflict of interests with a former client;" SCR 20:4.2 "communication
with person represented by counsel and first obtained in the consent of
another party's attorney;" and SCR 20:4.3 "dealing with unrepresented
person and the requirement to inform the person of the guardian ad
litem's role in the matter and to avoid providing legal advice."